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So what is justice? It’s not what we are led to believe it is by social justice warriors.

We must be able to define justice before we can determine how to pursue it. F.A. Hayek defined the emptiness of the concept of “social Justice” in Part 1 of The Mirage Of Social Justice. In Part 2, he proceeds to provide the meaning that is lacking in the typical use of the term.

What Justice Is Not.

First, he tells us what justice is not. Justice can not refer to outcomes. We can not refer to a state of affairs or a circumstance such as the distribution of income between people in a country, as either just or unjust. It is neither. It is a circumstance, a condition. It is an emergent property of the system by which we all live, one that has evolved over time based on individual human behavior.

When we apply the terms just or unjust to a state of affairs, we immediately start to look for someone to blame for bringing it about or allowing it to happen. That, says Hayek, is a very dangerous categorical mistake. It divides society. It makes us all enemies.

A bare fact, or a state of affairs which nobody can change, may be good or bad, but not just or unjust.

Justice Can Not Refer To Outcomes, Only To Human Behavior.

Justice is an attribute of human behavior. The term “just” can refer only to human actions and not to results. In spontaneous order, there are no rules that determine what anyone’s position will be. The particulars of the spontaneous order – the positions individuals actually occupy – cannot be called just or unjust

Justice lies not in the outcome of the system but in its norms of interpersonal behavior, what Hayek calls “rules of just conduct”. These are different from laws, which are enacted by legislatures and are manufactured rather than evolved collaboratively over time. The politicized decisions of the legislature do not determine what is just. Only human conduct – how each individual deals with each other individual – can be called just or unjust. Rules of just conduct refer to the actions of individuals that affect others.

The Rules Of Justice Tell Us What Not To Do.

Rules of just conduct are generally negative rules. They prohibit unjust conduct. Eight of the ten commandments are negative (thou shalt not). Nine of the first ten amendments to the US Constitution in the Bill Of Rights are negative (Congress shall make no law…..and so on). Rules of just conduct enjoin particular kinds of actions in order to help individuals be free to act as they choose. The test of the validity of these rules is universality – do they apply to everyone equally, as opposed to favoring one group over another.

These rules impose no positive duties on anyone, unless they themselves choose to incur such duties. They do not confer rights on any individual. They do not eliminate uncertainty. They do not assure success. They do not aim at a result. They are not the product of someone’s will; they emerge from acceptable human behaviors over time.

Professing To Use Concepts Of Justice To Determine Outcomes Is Socialist And Totalitarian.

Essentially, there are no positive criteria of justice. There is a strain of thinking among the intelligentsia that goes by the name of legal positivism. This means that laws can be written by the legislature and applied by the state bureaucracy to achieve particular results. This, to Hayek, is what is fundamentally unjust. Worse, this concept of law holds that it is legitimate for the state to use coercion in the service of pursuing these particular results, thus totally abandoning the rules of just conduct.

This is simply the ideology of socialism: to achieve total control over the social order because the governing elites believe it is in their power to design and determine future outcomes.

Social justice warriors have seized upon this apparent approval of unjust means to pursue their ends by adopting violent and intimidating methods, from strikes to marches to wild accusations, and even the use of weapons. In the struggle between individual sovereignty and the sovereignty of the omnipotent state, the social justice warriors take the side of the state, in order to intervene to compel individuals into approved behaviors.

Property, Contract And Tort.

We know there is a better alternative to this never-ending struggle. The lesson of history is that a system based on private property and contract tends to bring about the spontaneous order which favors individual human freedom with the appropriate rules of just conduct. Hayek notes that David Hume referred to:

the three fundamental laws of nature, that of stability of possession, of its transference by consent, and of the performance of promises, or, as a modern author sums up the essential content of all contemporary systems of private law, ‘freedom of contract, the inviolability of property, and the duty to compensate another for damage due to his fault.’

Private property and the freedom to transfer it within the rule of law are fundamental for a free and open society. Social justice warriors want private property to be eliminated or transferred without consent. Whatever that is, it is not justice.

At Center For Individualism, we like to say that Economics Is Life. The principles of individual economics can be applied to help us all make better decisions for ourselves and, as a result, a better society for all emerges. One of the principles of individual economics is that it is necessary for there to be inviolable private property rights in order for citizens to be free to decide how to use their property – how to trade it , how to exchange with others, how to collaborate in shared communities. How to be civil, in other words, without being hounded by others who want to press claims on one’s property or to steal it or to vitiate it in some way. The worst perpetrator of such improper claims is, of course, a redistributive government. The government’s existence is purely about who gets taxed (i.e. their property is stolen), who receives benefits (i.e. property redistributed from others), and who is subjected to violence in police and military actions (i.e. property gets destroyed).

We don’t often think about property rights in a disciplined manner. Occasionally, a situation arises where the chance to do so is offered, and a commentator comes along who can help shed the proper light. Here is Jeff Deist of Mises Institute with a timely observation on private property.

Civility And Property Versus Politics

Calls for civility in politics are nothing new, and the incident involving White House spokesman Sarah Sanders at a restaurant has yielded plenty of smoke but little heat from both phony sides of this non-debate/non-issue.

I suppose we should be happy when property rights become part of the conversation. It’s healthy when our Left progressive friends develop a situational private property ethic. Of course property owners have the unfettered right to remove people or refuse service. And of course we should all be civil with those who don’t share our views. The day to day interactions that make any society at least tolerable, if not healthy, comport with customs and mutual-self interest, not positive laws.

But liberty requires property, and civility requires civil society. When politics and the state serve as the chief organizing principles in society, property rights and social cohesion necessarily suffer. Incivility is a feature, not a bug, of a highly political society. It is also a feature of an America where far too many things are decided by the federal government or its super-legislative Supreme Court.

What kind of healthy society devolves into cheering and jeering over judicial decisions, decisions swung by just a few judges voting one way or another? Should 320 million people have to worry so much about 5 or 7 Supreme Court justices?

It’s hard to argue for civility in winner-takes-all political scenarios. In fact it’s a recipe for hyperpartisanship, “othering,” and tribalism. It’s senseless to lament a loss of civility and then argue for overcoming our differences by voting harder and suing each other more.

Ludwig von Mises witnessed the collapse of the Habsburg civilization, the rise of Nazism in Austria and Germany, and two horrific European wars– a series of events far beyond mere incivility. His answer to actual barbarity was real liberalism, distilled in its purest form to one word: property. “If history could teach us anything, it would be that private property is inextricably linked with civilization,” Mises tells us in the aptly-titled Omnipotent Government.

But property is not part of the liberal program today; on the contrary, private ownership is under serious attack not only among rising “democratic socialists” like Alexandria Cortez and Bernie Sanders but also by protectionist and mercantilist forces in the Trump administration.

In fact only libertarians believe in full ownership–i.e. full control– of private property. This is hardly an edgy argument at this point; Murray Rothbard made it 50 years ago. But nobody in politics or media actually believes this or argues for it. In the context of real estate, full property rights would require no property taxes, no zoning, no permits or building codes, complete freedom to alienate or sell at will, and most of all full control over who enters and who is required to leave. This kind of private property is not available to cake bakers or quaint southern restaurateurs.

America slowly but surely lost her sense of robust private ownership, the soul of a free society. It happened through the tax and regulatory state, by overturning the Lochner case and jettisoning economic substantive due process, through absurd readings of the Commerce Clause, through the creation of wildly extra-constitutional administrative agencies, and through the creation of an inferior form of property called “public accommodations.”

By giving up property we gave up liberalism and civil society. By insisting on political control over vast areas of human affairs we gave up civility for force.

Remember, politics is zero sum. The restaurant owners view Sarah Sanders as a threat, as someone who is going to cause them harm if her (Trump’s) administration prevails. That the owners acted absurdly is not the issue, nor is the incoherent argument that Trump somehow is beyond the pale relative to past presidents. The scene at the Red Hen restaurant was the result of the owners’ not-unjustified perception that the US political system vanquishes people. To avoid being vanquished they must vanquish Trump, at least in their eyes.

Ideally, when asked to leave by the proprietors of the restaurant Ms. Sanders simply should have shrugged her shoulders and left quietly. Which is apparently what she did, although reportedly she was followed and harassed at a restaurant down the street. What’s unfortunate is not merely the twitter incivility that followed, or the nasty news articles clamoring about a brewing civil war, but rather our blindness in understanding where “democracy,” politics, and disrespect for private property lead.

Many of the problems we wrestle with in modern life would be solved if we lived in a private property society. Immigration is one. If all property were private, individuals would choose whom to invite on to their land or whom to employ in their entrepreneurial companies. Equally, they would choose whom to exclude, since the law of association includes the right not to associate. In the article below from WSJ Online, Andy Kessler makes the same argument about our personal data on Facebook. He includes not only the content we post, but the behavioral data we create through our clicks and Likes. He envisages the appropriate economic incentives to voluntarily maintain privacy or to share, and to receive advertising or not. And hopefully, the private property mentality will exclude or massively reduce regulation and government intervention.

Facebook has been on fire lately—but not in the way it usually is. Its stock is melting and congressional grandstanding (i.e., hearings) about privacy and security begins Tuesday. Facebook is a threat to democracy and society, critics now argue. I’ve lost track of how many professors are demanding the feds regulate or even break up the social-media giant. Don’t they teach classes anymore?

Apple CEO Tim Cook joined the pile-on last month: “I think that this certain situation is so dire and has become so large that probably some well-crafted regulation is necessary.” Be careful what you wish for. Sure, no one wants Russian bots controlling their minds, but targeting consumers’ minds based on detailed demographic information isn’t new. Bud Light has perfected it. Dilly dilly.

Techies have an expression for Facebook’s model. It’s “free as in beer”—in the sense of costing no money. You pay in other ways. I propose a simple fix. Let’s flip the whole thing—make it about property rights, 21st-century style. America was built on property rights. Congress can deliberate for 90 seconds and then pass the Make the Internet Great Again Act. The bill would contain five words: “Users own their private data.” Finis.

Contrast this with the European Union, which adopted its General Data Protection Regulation in 2016. It is more than 250 pages of confusing rules, exceptions and fines. But it doesn’t change the flawed model of today. It only adds regulations that make the situation even more confusing.

A Better Way to Make Facebook Pay.

What would the world look like under the Make the Internet Great Again Act? If you upload to Facebook photos from your last beach vacation—though please don’t—you still own them. But if I go to your page, zoom in to see whom you’re drinking with, click on a nearby ad, message you about it, or even “Like” it, that information about me should remain private too. I should still own it. Same for whatever I search on Google or buy on Amazon. I control it.

Facebook would store this info in a virtual locker, and users would control access. The social network already has this data. It simply needs to corral it into two billion virtual lockers. It’d take an overnight hackathon to implement, really. Each user could then share or not.

But if you don’t share, Facebook can’t do its magic and provide a robust News Feed. It will be all cat videos, all the time. Similarly, Google can’t provide pertinent search results, which, like prizes on “The Newlywed Game,” are selected especially for you.

You’re going to want to share. Here’s the good news: Facebook is going to pay you to share. Then they’ll turn around and charge you a similar amount to cover the cost of servers, electricity, coders and Mark Zuckerberg’s hoodies. This way they can still show Wall Street the profits it expects. Worth it? Your call.

Now users’ wants and desires are no longer free for the taking, even though nothing, except who owns the data, has changed. At last, consumers get an economic proposition to decide how to use services like Facebook. Put a price on it. Facebook can still anonymously aggregate collective likes and interests so advertisers can reach people with similar tastes. That’s what TV networks do. But every time someone opens your locker to determine your individual wants, money changes hands and you get some of it.

This is where it gets fun. Facebook would provide a sliding scale for sharing. The more information you deem shareable, the more you earn. In effect, it becomes a revenue-sharing arrangement with advertisers that want to reach you. If you don’t mind the barrage of ads, share away and a virtual wallet inside your virtual locker grows and grows, probably to be spent on new Facebook services like games, music or videos. Real competition in a real marketplace, rather than the charade of today.

Your locker would also contain a trust component, to combat fake news and to pay trusted content creators, like, say, The Wall Street Journal. To flag fake news and clickbait Facebook recently added an information button to links and will soon verify political ads, with insight about the source. Next, they need a trust factor or score determined by an algorithm with human input. As Facebook runs out of new global users, they can squeeze out more revenue per user. A business model with an upside. This virtual locker holding your data can be easily implemented at Google and Amazon. Where it’s especially needed is with consumer-facing apps like Uber and Airbnb. As more voice-activated Amazon Alexa-like devices enter more homes—Facebook for good reasons recently delayed introducing theirs—it’s critical that the industry, or Congress, set rules on who owns the data from everyday conversations. It should be simple: I own it, you can rent it.

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